Feds Had Court Reverse Ban On Warrantless Searches On Americans Because 'We Wanted To Be Able To Do It'

from the that-whole-4th-amendment-mean-anything-to-you? dept

Last month, we wrote about the revelation of the infamous backdoor search loophole that allowed the NSA to run searches on the communications of Americans without a warrant, just so long as they collected them under another program -- the so-called 702 program of the FISA Amendments Act, which sucks up a large amount of communications, based on some very broad definitions of words like "target" and "relevance." We noted that this was due to a "rule change" in 2011, but the details of that change weren't entirely clear... until now.

The Washington Post has the story (along with the recently released -- though heavily redacted -- FISA Court ruling about the NSA lying to the court) that shows that back in 2008, the FISC had banned any such searches at the request of the Bush administration, but in 2011 the Obama administration reversed course, and asked the FISA Court to allow such backdoor warrantless searches, and the court did what it was told, issuing a ruling allowing them, despite the fact that it's almost certainly a major 4th Amendment violation. The Obama administration's reasoning? As noted below, a chief administration lawyer explains: "We wanted to be able to do it." The "it" there, for clarification, is run warrantless searches on tons of communications (not just metadata) collected from Americans.

What's a little surprising is that I'm pretty sure I called some of this back in June, the day after the first Snowden leak came out, when I pointed out that the NSA likely defines "target" not to mean just the person that they're targeting, but rather the entire investigation. So as long as the goal of the collection was to "target" a particular non-American situation, anything can be collected, and then it can be searched at will without a warrant. Apparently, this includes somewhere on the order of 250 million communications per year.

What's astounding is that Robert Litt, the general counsel for the Office of the Director of National Intelligence, seems kind of proud of the fact that they got this backdoor loophole:

The court in 2008 imposed a wholesale ban on such searches at the government’s request, said Alex Joel, civil liberties protection officer at the Office of the Director of National Intelligence (ODNI). The government included this restriction “to remain consistent with NSA policies and procedures that NSA applied to other authorized collection activities,” he said.

But in 2011, to more rapidly and effectively identify relevant foreign intelligence communications, “we did ask the court” to lift the ban, ODNI general counsel Robert S. Litt said in an interview. “We wanted to be able to do it,” he said, referring to the searching of Americans’ communications without a warrant.

Um. "We wanted to be able to do it" is not exactly a valid reason for violating the clear language of the 4th Amendment. I'm sure plenty of government officials "wanted to be able to do" all sorts of illegal things like throw political foes in jail for dissent, or shut down newspapers for writing things they don't like. But we don't allow it because the Constitution says you can't do that.

But Litt just can't help himself, he's so proud of violating the 4th Amendment.

“If we’re validly targeting foreigners and we happen to collect communications of Americans, we don’t have to close our eyes to that,” Litt said. “I’m not aware of other situations where once we have lawfully collected information, we have to go back and get a warrant to look at the information we’ve already collected.”

The duplicity here is incredible. First, they redefine "target" to allow them suck up American's communications without a warrant, despite the fact that this is expressly prohibited. Then, to ignore the official minimization rules that bar them from looking at any communications that involve Americans, they have a court say "oh fine" and overturn a clear rule that says they can't look at those communications, and Litt doesn't see the problem? Most people would argue (a) the original collection was not, in fact lawful and (b) even if it was lawful to collect, over and over again for the past few months, government officials have insisted that they are careful to make sure searches on Americans don't happen. Yet, now he nonchalantly waves off the issue as being "of course" they search that information because he thinks it's "lawfully collected" despite being almost directly against the plain language of both the law and the Constitution? Wow.

Oh, and as a "bonus" they appear to have tossed in the ability for the NSA to keep Americans' communications for six years, rather than five. Note, of course, that over the past few months, the NSA and its defenders have continued to trot out the five year claim, even though this ruling makes it clear that the timeline had actually been extended to six. So, yet another lie to top it all off.

And, while most of the outrage should be directed at the Obama administration, mainly in the form of Litt and James Clapper who pushed for this, some of it also should be directed at the chief judge of the FISA Court at the time, John Bates, who signed off on this "rule change." Once again, it seems that the administration and the NSA's defenders keep claiming one thing, and only later, as it's pointed out that the opposite is true, do they say something like "oh, yeah, well of course we do that..."

“If we’re validly targeting foreigners and we happen to collect communications of Americans, we don’t have to close our eyes to that,” Litt said. “I’m not aware of other situations where once we have lawfully collected information, we have to go back and get a warrant to look at the information we’ve already collected.”

I'm not sure that "collect[ing] communications of Americans" can be considered "lawfully collected" before this... I believe that's unlawfully collected in which case the government does "have to close [their] eyes to that".

Just because you can do it, doesn't make it right.

As we gave up our rights to be safe after 9-11 they took this as a mandate to remove all of our rights.

They are giddy over the total surveillance state they have built, and are trying to crush anyone who dares question what is happening.

We've toppled dictators who have done exactly what they are doing. It is time for this to end, and people to be punished. But but but terrorism does not justify a single thing they have done to dismantle the rights of citizens, and it is time they our rights be restored and strengthened.

“If we’re validly targeting foreigners and we happen to collect communications of Americans, we don’t have to close our eyes to that,” Litt said. “I’m not aware of other situations where once we have lawfully collected information, we have to go back and get a warrant to look at the information we’ve already collected.”

The funny thing about this is that they were previously using the fact that they were "only collecting and not looking" as a reason the collection was lawful. Now the looking is lawful because the collection was lawful.. nice.

Re:

NSA: It's too hard to collect foreign data without catching Americans in our net.
FISA: Ok fine. You can collect everything, but just delete the American data.
NSA: But now we have all this American data that we want. There is no sense in pretending it's not there.
FISA: I suppose. Just don't abuse it!
NSA: No promises.

Re: Wait.....

Um. "We wanted to be able to do it" is not exactly a valid reason for violating the clear language of the 4th Amendment.

Mike,

Can you actually explain how this violates the Fourth Amendment?

Here's the "clear language": "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

It says that searches cannot be "unreasonable," and that if there is a warrant, it must be based on "probable cause."

Can you please run us through how these warrantless searches are unreasonable, applying the actual Fourth Amendment doctrines that comprise the actual law? Or are you just thumping the Constitution, unable to actually back up what you claim?

Re:

What crade and the AC said above. And, but, also -- isn't it only right that the people who want to engage in this type of behavior have to prove how their actions are reasonable, not for us to prove they are unreasonable? Particularly for cases like this, where the actions go against the plain and obvious intention of the fourth amendment?

Re:

I direct you to prisoners within Guantanamo Bay. Many of them are there against all kinds of laws, have never been charged of a crime and more than likely will never be. Even so, they still talk to their lawyers. However, both they and their lawyers know that every single line of communication between them is tapped. Watched. Recorded. Viewed.
As a result, they are now extremely careful about what they say. They cannot feel free to speak what they want, because they know that with everything being monitored, anything they say can and will be used against them. This drastically changes their personalities.
Here, I direct you to another Techdirt articlehttps://www.techdirt.com/articles/20130617/11212323508/how-knowing-government-is-spying-you -changes-how-you-act.shtml

But we don't allow it because the Constitution says you can't do that.

The constitution was torn up long ago, they just put it through a shredder as well post September 11. Your federal government would just settle disputes between the states and help organise resistance to repel foreign invaders when and if necessary and pretty much nothing more if it actually followed the constitution. Constitutionally the US federal government should be tiny, one of the smallest governments around, but instead it is the largest and most powerful in the world.

and if this court decision doesn't show to everyone that they are more interested in doing what the Feds/Government want than upholding the law and protecting citizens, i dont know what will!! the only industries that aren't mentioned are the entertainment industries. add them into the equation of getting everything they want from the courts, whilst screwing the people over and you have a full house!!

Re: 250 million communications

back in 2008, the FISC had banned any such searches at the request of the Bush administration, but in 2011 the Obama administration reversed course, and asked the FISA Court to allow such backdoor warrantless searches, and the court did what it was told,

Bush might had done all kinds of stupid things during his 2 terms. At least he took the precaution of having those searches excluded. Obama didn't care about this and asked that these restrictions be removed. Who was the most patriotic of the two.

Re: back in 2008, the FISC had banned any such searches at the request of the Bush administration, but in 2011 the Obama administration reversed course, and asked the FISA Court to allow such backdoor warrantless searches, and the court did what it was to

You mean who is the greater villain? What does it matter? They're both still villains.

Re: Re: back in 2008, the FISC had banned any such searches at the request of the Bush administration, but in 2011 the Obama administration reversed course, and asked the FISA Court to allow such backdoor warrantless searches, and the court did what it wa

"You mean who is the greater villain? What does it matter? They're both still villains.

Aye John, that's just more proof that power corrupts

@ Jerrymiah, it's not good to use the evils of one man to excuse the evils of another. That's politics. I think this blog deals more in ideals than politics even though it's sometimes hard to separate the two.

The 4th amendment does give us a hint that warrants should particularly describe the things to be searched/seized. This is not particular; it's everything.

That's good. You bring up the particularity requirement for warrants and sketch out an argument--that's more than Mike did above. Of course, these searches are not necessarily "searches" under the Fourth Amendment, they don't involve warrants, and instead their legality turns on some rather complicated doctrines, both statutory and constitutional.

Let me ask you this. Do you agree that Mike has no problem declaring that this violates the Fourth Amendment even though he clearly cannot do the actual legal analysis to reach that conclusion? If you agree, what do you make of his constitutional opportunism? If you don't, what makes you think he's capable of doing the analysis?

Re:

So you're saying that unless you're a constitutional scholar then you're not allowed to express an opinion about whether or not something is Constitutional?

I disagree. The Constitution is supposed to be understandable by everyone. If it is not -- for example, if what the Constitution "means" can only be understood through the obfuscation of years and layers of legalisms, then the Constitution is rendered effectively worthless for the most important purposes.

This ruling directly opposes everything going on regarding the NSA spying on U.S. Citizens. Looking at the comments from the presiding judges, they were specifically concerned with the government doing precisely what is going on today. Why this is never brought up I can only imagine...

Re: Mike's bias - its obvious

I agree, Mike shows an obvious bias in favor of privacy and the rights of citizens. In this case, myself also not being a constitutional scholar (and your credentials are...?)it seems clearly unreasonable that once communications are inadvertently swept up as part of a targeted investigation it becomes 'reasonable' to be allowed to search them even though they clearly are not part of the original target is an overreach and violates the specificity required by the Fourth Amendment. There is nothing 'particular' about sweeping in everything then sifting it as you wish. We're building a security/military/industrial surveillance state designed to perpetuate the power and control of a small elite of political and economic influencers, and plutocracy of the few who will control the many ordinary citizens through fear, manipulation, and deceit.

Warrantless doesn't necessarily mean unreasonable, nor does it mean these are even "searches" under the Fourth Amendment. It's a lot more complicated than that--which is my point. I don't think Mike understands the nuances, yet that doesn't stop him from declaring them unconstitutional. Do you think Mike can do the actual analysis?

Re:

Oh, good lord. Nobody said that "warrantless" automatically means unreasonable. And of course they're searches (except, perhaps, through the lens of lawyers who are being paid to make sure that they can be done without repercussions). It's just plain obvious.

It's this phony business of "nuances" (which means interpretation through highly distorted, complex, and questionable rulings by the courts and custom) that are the main way that the Constitution is being nullified.

Re:

Sigh, you said the 4th Amendment requires that searches cannot be "unreasonable". Reinterpreted, that means you cannot just search because you want to, but you need a reason.

Now look at the quote from Litt who is part of the General Council for the Director of National Intellegence:

"If we’re validly targeting foreigners and we happen to collect communications of Americans, we don’t have to close our eyes to that,” Litt said. “I’m not aware of other situations where once we have lawfully collected information, we have to go back and get a warrant to look at the information we’ve already collected.”

Notice the "happen to collect [extra data we aren't targeting]". That's not data collected for a specific reason, that's extra data collected by accident. You can't broaden your scope on a search just because you happen to find something extra, that's outside the scope of the search and is thus illegal.

Even when there is a warrant, that warrant says what they can look for and where they can look. It's specific. It's targeted. It's not let's find anything and everything we can.

I don't need case law, law school, or lawyerese to know bullshit and unconstitutional when I see/hear it. I'm sorry you do.

I'd like to think the American government wasn't about "what can we get away with", but rather "what can we do to protect the freedoms and liberties of this nation". Invading the privacy of it's people, survelling it's people, and hiding from it's people aren't what this country is about. Or at least not what it was about.

Re:

If you think they are constitutional, feel free to post why.

However, if you say that the 4th amendment doesn't apply because the information is with third parties, I disagree. That's rather like saying the government can open your mail without a warrant because the Postal Service is a third party.

If you try to say "they're just business records", it's clear that they went well beyond that and looked at actual communications.

If you try to claim that the materials are relevant to an investigation, then you stretch "relevant" beyond meaning.

If you try to claim that "they're just collecting, and there's no search until they look", I don't really buy that either.

If you try to claim "but we're at war, and that creates special circumstances", I would argue that from a constitutional perspective we are not at war until Congress declares we are, and they haven't done that since the 1940s.

Re:

"I don't think Mike understands the nuances, yet that doesn't stop him from declaring them unconstitutional. Do you think Mike can do the actual analysis?"

Masnick doesn't need to be able to do the analysis himself, not when others have already done it. That's like saying I can't call creationism bullshit because I'm not an evolutionary biologist. I don't need to do the research myself when evolutionary biologists have already done the work for me. Asshole.

Seizure

What about the 'seizure' part of the 4th? Is the NSA making/obtaining copies of the data? That IS seizure, whether it is looked at later (as the NSA states is the actual 'search' part, though that is debatable..) they have already seized it, which is illegal. You cannot search through what you do not have. If copying the data is not 'seizure' then Snowden's prosecution, copyright, patents, etc.. all are thrown out the window since the copy no longer has the same protections as the original, hence cannot be enforced.

Re: Seizure

"What about the 'seizure' part of the 4th? Is the NSA making/obtaining copies of the data? That IS seizure..."

Careful here. In US law currently I can see your arguement especially if you look at "theft" in copyright caselaw. According to current terminology, something can be stolen without the original user knowing or losing anything.

However as noted before on Techdirt, the term "theft" isn't really right cause that implies a loss to the original owner. Technically US citizens aren't losing anything other than personal security from their government.

The reason I say to be careful is that if you're someone who believes "theft" isn't the right terminology in copyright cases, you probably shouldn't use it here. That's wanting things both ways.

I'd argue for the Snowden part, it's more of an illegal copying than an actual seizure of data. Illegal access/copying and abusing the trust of the government moreso than seizure. Either way you're right though, the government should be careful too. They can't have it both ways either (even though they think they should get it).

Re: Re: Seizure

I am not one of those who want it both ways, I am one who wants consistency. I am of an age and financial situation that allows me to not bother with the the theft/copy issue typical of Techdirt. However, if one is theft, one is seizure. If not, not. Existing law, court interpretations, and prosecution (i.e. the government) arguments have been on the side of it being theft, therefore what is being done is considered seizure.

As stated above in the 1972 Kieth supreme court case, it is illegal to search/seize U.S. citizen information without a warrant, even in national security related investigations. A warrant requires probably cause and specificity, which the NSA does not provide in their 'dragnet' warrant requests (Everything is not specific) submitted to FISA.

I don't have time to go into the merits and demerits of the claim, nor am I making any such claim. Fact is, it would take me many hours of research to say anything intelligent on the matter. I am asking, though, whether you agree that Mike doesn't possess the capability to do the actual analysis. Do you agree? I'm trying to understand why folks don't call Mike on this stuff.

Re:

The text of the 4th Amendment is very straightforward, at least for those of us not trying to find wiggle room to do whatever the heck we want to do regardless of what is permitted.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Go to court and request a warrant. State what will be searched and whom and/or what will be seized. Be specific. State why you believe you deserve to get the warrant you've requested.

This is very simple language and no where comes close to requiring "hours of analysis" to come to the conclusion that the NSA's approach of ...

Masnick doesn't need to be able to do the analysis himself, not when others have already done it. That's like saying I can't call creationism bullshit because I'm not an evolutionary biologist. I don't need to do the research myself when evolutionary biologists have already done the work for me. Asshole.

No need to be so rude. So I take it you agree that Mike hasn't the ability to do the analysis himself. I'm glad we agree. We know that Judge Bates found the queries to be constitutional since they were deemed likely to yield foreign intelligence information. Where are the arguments against Bates' interpretation that Mike is adopting?

Moreover, as you seem to admit, Mike himself doesn't know enough about this stuff to adopt that reasoning based on its soundness. He just likes the conclusions--which is really my point. Anyway, what's wrong with pointing out that Mike can't actually do this analysis and that he can't actually back up his claim that it's unconstitutional? Seems like something we should readily call him out for.

Based on revelations of the last few months, these are all types of things that the NSA has the capability to get, without yours (or mine) express permission, all under the guise of "protecting us from terrorism."

If you feel so strongly that the NSA can just break encryption and scoop up information indiscriminately about all of our private lives, then...

YOU. GO. FIRST.

Post all of what I just suggested, right here, right now. If you've got nothing to hide, you've got nothing to fear, right? Right??

Until you're willing to do that, you have NO RIGHT to question our constitutional right to question and analyze the legitimacy of our government's unconstitutional spying. Mike isn't the first (or even only) person to start questioning or analyzing what's going on in our out of control government. And he certainly isn't going to be the last.

It doesn't take a constitutional scholar or a law degree to know unconstitutional behavior when we see it.

I guess you DO go full evil.

"If we’re validly targeting foreigners and we happen to collect communications of Americans, we don’t have to close our eyes to that," Litt said.

So if they search your house accidentally because they got the address of a crackhouse wrong, and turning it over they find your illegal weed stash, they can validly bust you? I thought that was the whole point of protection from illegal search and seizure.

Soon enough, accidental or rather inadvertant discovery will be the go-to procedural bypass.

Litt said "I’m not aware of other situations where once we have lawfully collected information, we have to go back and get a warrant to look at the information we’ve already collected.?

If this is regarded by anyone inside the system as a valid justification, then it will be used to tap into the big NSA database when they don't quite have the legal certification to do so. Well, we already have the data, we should be able to look at it.

Really, NSA is looking less and less like a process of stupid-gone-cascade and more and more like full on like willful malice. Actually, it's looking like Blofeld / Spectre style full-on evil.

So if they search your house accidentally because they got the address of a crackhouse wrong, and turning it over they find your illegal weed stash, they can validly bust you? I thought that was the whole point of protection from illegal search and seizure.

Look AJ, if you feel so strongly that what the NSA is doing is constitutional, then...

I explicitly said I wasn't making a claim either way. My point this whole time has been that Mike has no trouble stating that this violates the Fourth Amendment even though he has no ability to actually do the analysis. And saying that he adopts other people's views is no answer since he still wouldn't be able to assess whether someone else's view is an accurate description of the law or not.

It doesn't take a constitutional scholar or a law degree to know unconstitutional behavior when we see it.

That's not true. These are complicated doctrines that you can't just suss out of thin air--which is precisely my point. You think the delicate nuances of the various Fourth Amendment doctrines are so simple that laymen with no training can just spot them on sight? That shows how little you know. Even constitutional scholars who have spent their careers devouring this stuff reach different conclusions on certain things.

Regardless, my point stands that Mike pretends like he knows what he's talking about when it comes to these complicated constitutional doctrines. And for some reason, you guys are unable to call him out for it. It's fine if Mike wants to point out that someone else made a certain argument, and it's fine if Mike wants to take a position. But I'm not OK with him pretending like he can actually back up the position he's taken--he can't. It's just faith-based, backwards-worked nonsense. Just call it what it is.

Re:

You're a lawyer or rather claim to be. So, it's no surprise that you would assert that it takes a lawyer to understand the plain language of the constitution or, more specifically, the 4th Amendment.

In short, that's absurd.

There is no reason why Mike or any of us can't reason for ourselves the plain meaning described in that document. It was written for the people by the people. It's not the Bible, written in parables. It's design is to keep the government in check, not to keep the people in check.

But, go ahead and keep missing the freaking point by criticizing Mike for expressing his belief on why he feels this spying is unconstitutional. While you're at it, criticize me in the same manner because I happen to agree with him and I didn't need to read a word he wrote to come to my own conclusion.

Copied from AC's post above:

'The text of the 4th Amendment is very straightforward, at least for those of us not trying to find wiggle room to do whatever the heck we want to do regardless of what is permitted.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."'

What exactly is unclear about that? Where's the 'nuances' that you say make violating the very clear text of the bill suddenly not a problem?

A warrant requires clear, concise wording, describing exactly what is to be affected/seized, otherwise it's invalid and in violation of the 4th amendment, and just because some sham 'court' tried to give the NSA wriggle room(or they decided to do it themselves) does not make it any less a violation.

Look, you don't like Mike, and you do like those in power(until you disagree with them anyway), these things are both abundantly clear to anyone who knows you and your posting history, but you really need to realize that criticism consisting entirely of ad homs, where you try and attack the credibility of the person, rather than pointing out what exactly they got wrong, is and always will be a failed argument.

Re:

If as you claim, you need to have the ability (read: law school degree) to do an analysis before you can discuss whether something is unconstitutional, then the Constitution is worthless. The Constitution was designed to restrict the powers of the US government, and for it to reach that goal, it had to be written in an understandable language that all US citizens can read, and thus, decide for themselves whether something is unconstitutional. If you continue to assert that you need special training before you can declare such, then the Constitution is useless as a shield to protect the citizenry, since then, only those with the training will benefit from it.

Re:

"My point this whole time has been that Mike has no trouble stating that this violates the Fourth Amendment even though he has no ability to actually do the analysis."

And this is why your obvious personal attacks fail so completely. At the very least Mike is doing the same analysis as neatly everyone else reading these stories; a plain-English, common-sense reading if the Forth Amendment, based on what was obviously intended for it to achieve. That analysis is not hard and doesn't require expert legal knowledge. The only people who think you do are are lawyers and politicians trying to twist and distort basic Constitutional principles to get the result wanted, whether that's in the public's best interest or (most likely) not.

I'm more disappointed in the complete corruption of the Judicial System. How can average citizens be expected to abide by the law, if Federal Judges themselves don't abide by the High Law of this land. The Constitution of the United States of America.

I'm losing faith and respect in the US Judicial System. Everyone involved in this system has not only disgraced themselves, but also the very system they took an oath to uphold.

I'm having serious doubts about the integrity of the Executive Branch, Congress, and now the Judicial System. All the evidence points to absolute corruption in all three branches of our Government.

I'm starting to feel like neither of these branches are fit to serve the American people anymore.

He never will, because creating new threads gets him more attention and more responses.

I've explained this before, but I'll say it again. Since Mike is actively censoring me by routing my posts to the spam filter, I'm using a proxy. This proxy somehow causes all posts to show up as a new thread, even when I'm responding to a post in the normal fashion. If Mike wants me to post normally, he should stop censoring me.

There are many Fourth Amendment doctrines I would feel very comfortable discussing, but the foreign intelligence exception to the Fourth Amendment is not one that I understand well enough to discuss intelligently. Neither does Mike, which is my point.